September 2007

Via Desmogblog's continued laser-like focus on climate change "skeptics," we're pleased to learn that University of Virginia climatologist Pat Michaels has quietly stepped down as that state's official climatologist, amidst criticism of his private industry funding for his denials of the global warming problem.

You see, Michaels wasn't just trying to promote his views within Virginia-- as reported by Robert McClure of the Seattle Post-Intelligencer, the Society of Environmental Journalists recently revealed that Michaels nearly testified last spring in the auto industry's (ultimately unsuccessful) lawsuit against Vermont's auto emissions standards. He apparently withdrew at the last minute when it became clear that he would have to disclose his sources of funding.

Michaels' involvement here only makes us further question the praise being heaped on the auto industry about its purported commitment to reducing emissions by EPA Administrator Stephen Johnson. His rosy assessment of an industry that not only continues costly litigation to thwart state emissions-cutting efforts, but employs people like Michaels in doing so, is increasingly troubling in light of his duty to rule impartially on California's critical waiver request. We're increasingly skeptical of Johnson's intentions here.

Analyzing the talking points that the Bush administration has been circulating amidst this week's flurry of international climate negotiations, Washington Post reporters Juliet Eilperin and Steven Mufson have uncovered an inconvenient truth. Apparently, areas of American progress in emissions reduction they've been taking credit for-- hoping to stave off pressure to create international mandates for fighting climate change-- came about through no intervention of current administration policies, and often through efforts that they lobbied against.

We've said this a number of times before so we're not going harp on the point too much, but it nevertheless bears repeating yet again: this wouldn't be the first time something like this has been paraded before the UN.

Also worth noting in Eilperin and Mufson's piece, particularly in wake of Mass. v. EPA and in anticipation of the EPA's forthcoming decision on California's waiver application, are the dueling takes on progress dealing with auto emissions from EPA Administrator Stephen Johnson, and the NRDC's Roland Hwang:

The administration has vowed to further increase fuel efficiency by 4 percent a year over 10 years, which would result in a combined fleet average of nearly 35 miles per gallon in 2017. Hwang praised that goal but said he was waiting to see if the EPA actually publishes rules to accomplish it.

A new public opinion survey, conducted by Yale University, Gallup and the ClearVision Institute, reflects quite a bit of growing urgency in Americans' thoughts on global warming. More on that point, and the growing electoral importance of this issue, over at Desmogblog.

It's also certainly worth noting the broad, and increasingly deep, public support for some hotly debated regulatory measures:

The U.S. Congress is currently debating an increase in the fuel economy standard for cars, trucks, and SUV’s. This survey found that a very large majority of Americans (85%) support a fuel economy standard of 35 miles per gallon, even if a new car thus cost up to $500 more to buy. Congress is also currently debating whether to mandate that electric utilities produce a certain percentage of their electricity from renewable energy sources. This survey found that 82 percent of Americans support legislation that requires utilities to produce at least 20% of their electricity from renewables, even if it cost the average household an extra $100 a year. Additionally, 89 percent of Americans would support a requirement that all new homes and commercial buildings meet higher energy efficiency standards.

Overall, the picture painted here is of an electorate that has coalesced around pragmatic-seeming solutions even if they are framed as a sacrifice (the survey does go on to note continued opposition to increased gasoline and electricity taxes), and is inreasingly inclined to factor that into electoral judgments. It at least helps explain why as of late, pioneering states like California have been moving further and more aggressively, and other policymakers across the country have been joining in.

Some may cynically fear this growing consensus, and the innovative policy and legal strategies that our federal system's most directly responsive officials-- those at the local and state levels-- are crafting in response. But it is becoming increasingly clear that the public is very much behind the way that politicians like Jerry Brown and Charlie Crist are working through this; and that the larger debate we've been following will only deepen as others inevitably follow their lead or even develop their own takes on fighting climate change, and as the federal government ultimately follows suit along some of the lines advocated by survey respondents.

Some wag once said that judicial activism consists of any court ruling the accuser doesn't like. And people on both sides of the aisle have become adept at denouncing rulings they don't like as activist with little regard to what the law requires. But a particularly egregious example appears in an online op-ed by Marlo Lewis of the Competitive Enterprise Institute. Lewis rails against Mass. v. EPA, which he describes as "a flagrant example of legislating from the bench," and he calls on Congress to "overturn" the ruling.

To reach this conclusion, however, Lewis engages in a remarkable distortion of the law and the facts. I won't provide a point-by-point response (it would be hard to improve on the briefs filed by Massachusetts and its allies), but here's a quick rundown of some of Lewis's most glaring whoppers.

Lewis argues that carbon dioxide is not an "air pollutant" under the Clean Air Act. But somehow he makes it through his entire op-ed without mentioning that the Act itself, specifically section 103(g), expressly refers to carbon dioxide as an air pollutant. Although this provision does not confer regulatory authority, it would be unprecedented for the Congress to treat a chemical compound as an air pollutant under certain provisions of the Act but not others, and especially strange to do so in view of the exceedingly broad statutory definition of "air pollutant."

We're pleased to learn, via Jeff McIntire-Strasburg at Sustainablog, that the Donlen Corporation and the Sierra Club have teamed up to produce coolfleets.com, which comes with the following tagline:

coolfleets.com was developed to assist commercial, government and municipal fleets in modeling vehicle alternatives to gain a better understanding of both their carbon output and lifecycle costs. Car and truck fleets are significant contributors to greenhouse gases and the selection of vehicles that are more fuel efficient can not only reduce CO2 but can also result in lowering the total costs of fleet operations.

Last month, after the 9th Circuit upheld regulations directing public fleets to purchase low-emission or alternative fuel cars in Engine Manufacturers v. South Coast Air Quality Mgmt. Dist., we defended the decision against industry criticism by noting the long-term cost effectiveness of such measures. Jeff's write-up goes into excellent detail about the practical applications of this new web tool for anyone looking to maximize both energy efficiency and cost efficiency, including this tidbit about economics where one could easily substitute "cash-strapped local governments" for "business."

Those of us who are passionate about environmental protection tend to argue in [sustainability-based] terms, as they're meaningful to us. But business people, however green they may be, need the business case, and the Cool Fleets tool looks like it does a nice job of offering just that. Fleet managers can have their green cred without breaking the bank... what better example of a "win-win?"

While we're on the topic of California's waiver application, Rep. Peter Welch (D-VT) has gotten 89 of his fellow lawmakers to sign a letter to EPA Administrator Stephen Johnson, asking that he act immediately on the matter in wake of Judge Sessions' ruling in Vermont and the Supreme Court's in Mass v. EPA.

There is a growing consensus among the states that immediate action is necessary to reduce the imminent hazards of America's global warming pollution. We urge you to make your decision on the merits, in accordance with the law and the facts of this case, which demand you immediately grant California's waiver, allowing California and other States to move forward---ideally in partnership with the federal government.

Meanwhile, over at Calitics, David Dayyen is noting the convergence between the Bush administration's positions regarding international standards and state standards:

But let's accept Bush's logic for a moment... He believes that governing entities should be given latitude to make the climate change policies that they see fit, rather than having them signaled from on high. Unless, of course, that refers to states in this country and the one on high is him.

Yesterday in New York, global leaders gathered to talk about global warming solutions at the UN. President Bush skipped the talks, in favor of preparing for his own summit later in the week, and put forth the idea that sovereign nations should be entitled to set their own standards. Not that the U.S. went unrepresented-- California Governor Arnold Schwarzenneger spoke about his state's efforts (on its own and in concert with others) to contribute to a broader solution:

Schwarzenegger did not hide his feelings that California, rather than the Bush administration, is guiding U.S. policy on greenhouse gases.

"California is moving the United States beyond debate and doubt to action," Schwarzenegger declared. "So I urge this body to push its members to action also."

The partnership forged in the vacuum created by federal inaction and delay between international actors and state/local leaders like Schwarzenegger represents real progress and the potential beginnings of a dynamic framework for addressing global warming at every level of society. But it remains incomplete so long as the federal government, like the auto industry, continues to prefer obstruction and weakly-grounded legal maneuverings the face of repeated invitations to join in forging shared solutions.

It's fitting, then, that simultaneously another elected official from California-- Rep. Henry Waxman (D-CA), Chairman of the House Government Reform and Oversight Committee-- releasedemail records showing that the Secretary of Transportation, Mary Peters, coordinated White-House-approved efforts to lobby against California's request for an EPA waiver to enforce stricter emissions standards that other states could copy.

That's the overarching question that Sacramento Bee political columnist Dan Walters seems to answer in the affirmative, reacting to last week's dismissal of California's nuisance emissions suit against auto companies. Well actually, Walters uses the phrase "stunt," and further expands that criticism to include other actions related to global warming pursued by both Bill Lockyer (who filed the nuisance suit as Attorney General, now serves as the state's Treasurer, and strongly defends himself in a letter published today) and Jerry Brown (California's current AG):

Global warming is the new political shibboleth, one that Al Gore, Arnold Schwarzenegger and other political figures exploit to the max. Lockyer and Brown wanted some of the spotlight and the lawsuit was a way of getting it. They knew, or should have known, that it lacked any legal merit but can claim credit for trying and blame the courts for their failure.

Lockyer is still at it. A day after Jenkins' decision, now-Treasurer Lockyer joined a coalition of investors and environmentalists in petitioning the U.S. Securities and Exchange Commission to gain fuller disclosure by publicly traded companies of the effects of global warming on their operations and profits.

Brown, meanwhile, clearly wants to return to the governorship three years hence and will use global warming as his vehicle. That's why, for instance, he's been suing, or threatening to sue, local governments for their alleged failure to consider global warming in their development planning.

Walters is disturbed that global warming has become a "political shibboleth" that Lockyer and Brown have sought to capitalize on. However wary of the issue's natural intersection with political ambitions a seasoned observer like Walters might be, this strikes us as a generally healthy and positive thing.

After all, the idea of ambitious state and local officials tackling large-scale problems that fall under their purview, and doing so in creative ways-- especially in the absence of meaningful federal action-- is as American as apple pie. Before he dismisses them as mere politicking, Walters should also weigh both the rationale behind Brown's and Lockyer's bold actions, and the support and coordination they've received from local officials and from other states.

If he then concludes they're still inapproporiate across the board and everyone involved is, to some degree, just playing to the masses, then so be it. But the fact that this has become such a hot topic in California and others states is, by far, a net positive in the broader scheme of things.

Two noteworthy and connected developments in Colorado that readers ought to be aware of:

1) The state's Air Quality Council, a group that reports to state regulators and to Governor Bill Ritter, has been hearing testimony about California's emissions goals and its auto emissions program. As we've reported before, they're seriously considering following the lead of California (and the growing group of other states either following their lead or working towards doing so).

2) The state's focus on auto emissions and on following California's lead could not be more timely, as per statistics disclosed in a new report noting that the state's current pace of sprawling development could moot other efforts to cut greenhouse gas emissions. We can't help but notice a passing similarity to the facts on the ground that have driven action around smart growth planning and global warming in the Golden State:

"Colorado is poised to come out with vitally important goals for reducing the state's global warming pollution," said Pam Kiely, land-use advocate with Environment Colorado.

"Even the most stringent policies on reducing carbon emissions will be for naught if we don't start driving down our growth in vehicle emissions."

The report shows that Coloradans drove 47 million miles in 2005, reflecting a 114 percent increase since 1980.

Cutting emissions and car travel will require smart land use, new pollution technologies and energy conservation strategies on both the state and local levels, said Michael Leccese, executive director of the Urban Land Institute Colorado District Council.

Over at Gristmill, the Sierra Club's Carl Pope has published a cogent, nuanced review of Ted Nordhaus' and Michael Shellenberger's new book, Break Through: From the Death of Environmentalism to the Politics of Possibility. While we haven't read the book yet (though we have read the authors' companion piece in The New Republic, as well as the "Death of Environmentalism" essay they expand upon here), one passage from Pope's review struck us as noteworthy:

Environmental advocacy had lost its way. But it had far stronger survival skills than Shellenberger and Nordhaus imagined, and as the authors were expanding their thesis into book form, environmentalism found a new trail and revitalized itself. Now more than 600 cities have signed the U.S. Mayors Climate Protection Agreement; more than 20 states have renewable electricity standards; half of the North American auto market is now subject to tough CO2 emission standards; 13 of the most populous counties have signed the Sierra Club's "Cool Counties" pledge, committing to an 80 percent CO2 reduction by 2050; states from Florida to Hawaii, and California to New Jersey, have enacted their own long-term, binding, and ambitious limits on emissions of greenhouse gases; all of the major Democratic presidential candidates have committed to very serious attacks on global warming; and the nation's most popular Republican governor, Arnold Schwarzenegger, has made the issue his signature.

Indeed, we'd respectfully add to Pope's list some of the innovative steps and proposals for fighting global warming that have fallen under our purview here at Warming Law. Jerry Brown's efforts in California, for instance, have had the stated aim (and preliminary results) of not merely using environmental law and regulations as a blunt and pre-emptive instrument, but of bringing about the kind of smart growth that will simultaneously reduce our carbon footprint and have other appealing benefits-- in other words, exactly what Nordhaus and Shellenberger seem to be calling for as an overall paradigm for the "climate-change movement."

In other words, federalism still works as an important part of environmental strategy (we say "still" noting its critical role in past efforts-- indeed, California's early protections area big part of why today's efforts have been possible). The large-scale effort to stave off global warming and create a better economy that all of us seem to agree upon, while ultimately aimed at a national and international scope, is rightly building itself from innovative, ground-up solutions.